Sun | Feb 5, 2023

Cari-Med workers appeal court decision in COVID vaccine challenge

Published:Thursday | December 23, 2021 | 5:22 PM
In documents filed in the Court of Appeal today, the five women argued that the lower court judge misunderstood the law and facts of the case. 

Five Cari-Med employees have appealed the Supreme Court's decision to throw out their claim that the company's mandatory COVID-19 vaccination policy breaches their constitutional rights.  

In documents filed in the Court of Appeal today, the five women argued that the lower court judge misunderstood the law and facts of the case. 

All five, including a pregnant woman, were denied exemption from the company mandate.  

They have not been paid salaries since September after declining to adhere to the Cari-Med's policy citing mainly medical reasons.  

On December 10, Justice Sonya Wint-Blair upheld an application by Cari-Med that the court should not exercise its discretion to hear the constitutional aspects of the lawsuit brought by the workers.  

The judge agreed with the defendants that there are constitutional issues to be adjudicated but dismissed the claim as an abuse of the process because redress can be found without triggering constitutional provisions.  

However, the judge said the claim of breach of employment contract against the pharmaceutical company should go ahead.  

No date has been announced for that trial.

The workers are contending that Justice Wint-Blair failed to demonstrate an understanding of the true scope of the rights and freedoms under the Charter of Fundamental Rights and Freedoms which they insist are being or will be violated.   

“The learned judge exercised her discretion upon a misunderstanding of the facts and law,” noted one of the nine grounds of appeal. 

The workers also have issues with Wint-Blair stating that their claims of constitutional rights violation were not frivolous yet going on to rule that keeping those aspects of the lawsuit would have been an abuse of process.  

They argue that the judge failed to consider their circumstances and applied an improper standard of proof, depriving them of the opportunity to raise further evidence including using expert witnesses.  

She used a restrictive interpretation of the Charter and failed to interpret it in a generous manner, they also said of the judge.  

Also being argued are claims that the judge used the wrong legal standard by assessing whether constitutional rights were breached and that she focused only on whether alternative remedies existed instead of giving attention to whether there were additional circumstances to consider.  

The lawyers and the Attorney General's Department have argued that the case had special features given that it relates to a pandemic and the issues surrounding vaccines.  

The judge ruled that there were no special features, a point the workers are disagreeing with by pointing to her claim that COVID-19 has presented an unprecedented situation.  

They also argued that Justice Wint-Blair made legal mistakes by treating the hearing as a mini-trial of the substantive claim.  

This is the latest round of legal battles spread across three cases involving employees and employers over vaccine policy mandates.  

Justice Wint-Blair has been dealing with all the cases.  

Earlier this week, the Cari-Med workers and senior data analyst at Digicel Jamaica, Doric White, lost their bid to get an injunction blocking the enforcement of their companies' policies.  

The court also struck out White's constitutional claim in his lawsuit against the telecoms giant. 

Meanwhile, a case involving investment firm AIC Jamaica has been withdrawn from the courts.

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